Reference must also be made to the recent decision of the Apex Court in A. Venkatasubiah Naidu v. S. Chellappan . In paragraph 19 of the judgment, the Apex Court observed:
"It cannot be contended that the power to pass interim ex parte orders of injunction does not emanates from the said Rule. In fact, the said rule is the repository of the power to grant temporary injunction with or without notice interim or temporary, or till further orders or till disposal of the suit. Hence, any order passed in exercise of the aforesaid powers under Rule 1 would be appealable as indicated in Order 43 Rule 1 of the Code. The choice is for the party affected by the order either to move the appellate court or the same court which passed the ex parte order for any relief.
(Underlining supplied) These observations show that Rules 1 and 2 and not the Rule 3 of Order 39 are the repository of the power to grant injunction. The words "any order" used by the Apex Court are significant and thus an appeal would lie even against an order refusing to grant ad interim injunction. It is no doubt true that some observations in paragraph No. 19 of the very judgment do suggest that an appeal against an ex parte ad interim order of injunction would be maintainable if the court does not decide the application finally within 30 days and breaches the mandate of Rule 3A of Order 39. However, those observations must be read in the context and in any event do not limit the earlier observations contained in paragraph No. 11 extracted above.{Para 10}
Bombay High Court
1. All these appeals involve common questions of law namely:
(1) Whether an order passed by the trial court to issue notice to the defendants and thereby declining to grant ex parte ad interim injunction is appealable?
(2) If yes, when can an appellate court interfere in the discretion exercised by the trial court in refusing to grant ad-interim injunction and/or issuing notice?
All these appeals arise out of various orders passed by the trial court declining to grant ex parte ad interim injunction and/or directing issuance of notices to the defendant. The wording of the orders is not uniform. However, words used in the various orders are like:
(i) Issue notice to the defendants.
(ii) Notice of motion made returnable on ....
(iii) No case of urgency made out for grant of ex parte ad interim injunction. Issue notice to the defendants.
(iv) No prima facie case made out for grant of ex parte ad interim injunction. Issue notice to the defendants.
Real substance of these orders is that the court declined to grant an ex parte ad interim relief and/or postponed consideration of grant of ad interim relief till service was effected on the other side. Such orders were passed even in cases where defendants had appeared suo motu with the only difference that the instead of directing issuance of a notice, the court had made the motion returnable on a particular day. As all the learned counsel submitted and rightly so, that the form of the order is not material but, the real substance of those orders being that the court declined to grant ex parte ad interim injunction all the appeals were heard together.
2. It is well settled that the right of an appeal is a creature of a statute and unless the statute provides for an appeal no appeal shall lie against any order passed by any court or any authority. learned counsel for the respondents contended that the statute does not provide for an appeal against an order declining to grant ad interim injunction and as such the order is not appealable.
3. Clause (i) of Sub-section (1) of Section 104 of the Code of Civil Procedure provides that an appeal shall lie against any order from which an appeal is expressly allowed by rules. Rule 1 of Order 43 of the Code of Civil Procedure confers a right of appeal against orders mentioned therein and reads:
(1) An appeal shall lie from the following orders under the provisions of Section 104, namely:-
(a) .....
(b) .....
(r) An order under Rule 1, 2, Rule 2A, Rule 4 or Rule 10 Order 39.
(s) .....
(unnecessary part omitted) Thus, an appeal is expressly provided against an order of injunction passed under Rule 1 or 2 of Order 39. Learned counsel for the respondents contended that an order of issuance of the notice is passed under Rule 3 of Order 39 and no appeal lies against it.
4. In S.D. Annadeshik v. M.R. Govindran reported in AIR 1924 MADRAS PAGE 857, in a short cryptic judgment, the Madras High Court held that the order of a subordinate Judge merely ordering issuance of notice as required by Rule 3 of Order 39 is not appealable under Clause (r) of Rule 1 of Order 43. The said view has thereafter been followed by many High Courts in this country. In Iqbal Singh and Ors. v. Chanan Singh and Ors. , in Khusilal and Ors. v. Gorelal and Anr. and in Bidulata Das v. Braja Bihari Palit and Ors. , Punjab, Madhya Pradesh and Orissa High Courts have held that the order passed by the court declining to grant ex parte ad interim injunction is essentially an order passed under Rule 3 of Order 39 and is therefore not appealable. So far as the Allahabad High Court is concerned, in H.B.S. v. Rambihari and Ors. two learned judges of the Division Bench differed on the issue whether an order of a trial Judge declining to grant an ex parte ad interim injunction was appealable or not. The third learned Judge to whom the matter was referred held that when the court refuses to grant ex parte ad interim injunction, the appeal was not maintainable but, a revision would lie.
5. Contrary view is taken by the Division Bench of the Patna High Court in Shyam Bihari Singh v. Bisheshwar Singh reported in AIR 1924 PATNA 713, wherein the Court held that Order 43 Rule 1(r) provides for an appeal against all orders interlocutory and final, passed under Order 39 Rule 1 granting and refusing an injunction. In Ashok Tsherning Lama v. Tshering Wangdi reported in AIR 1982 SIKKIM 20 the learned Single Judge of the Sikkim High Court has also held that such an appeal is maintainable and has given reasons in the following words:
"For I would have thought that all orders granting or refusing injunction, whether ex parte or after notice are ordered under either Rule 1 or Rule 2 of 0.39 except when injunctions are granted under inherent powers, and Rule 3 only seeks to regulate the mode in which the jurisdiction under Rule 1 and 2 is to be exercised. I would have thought that when a party makes an application for an immediate and ex parte order of injunction and the court refuses to grant such an injunction and instead issues notice of the application to the opposite party, the order of refusal would be an order under Rule 1 or Rule 2 as the case my be and not under Rule 3 and hence appealable under Order 43 Rule 1 (r) R.1(r)."
Undoubtedly, these observations are obiter. However, I respectfully agree with the reasons given by the learned Judge therein.
6. In Tilaksingh Ramsingh Aulan v. Pyarookhan a Mohd. Tnamssuddinkhan Saiffuddinkhan , the plaintiff had made an application for injunction. However, on the date fixed, his counsel was not present and the court passed the following order:
"Plaintiff and his Advocate absent when called on 8/9/1993, 6/10/1993 and also on 27/10/1993. It appears that the plaintiff, has no urgency of the matter. Defendant and his counsel are also absent. Application be kept for hearing with main suit."
An appeal against this order was carried before this court (Nagpur Bench). Allowing the appeal, this court held that the order putting off the passing of the order of injunction comes within the purview of Order 39 Rule 1 or 2. Order which puts off the consideration of an application for injunction to a final stage of a suit clearly amounts in refusal of an injunction and must be held to be appealable under the provisions of Order 43 Rule 1 (r) of the Code of Civil Procedure. If an order putting off the consideration of the grant of injunction till the decision of as a suit is appealable under Rule 1 (2) of Order 43, order putting off the consideration of the application for injunction till service of the notice on the defendants must also be held to be appealable by the same logic.
7. Rule 1 or Rule 2 of Order 39 are repository of the power to grant injunction. An order of injunction is always passed under Rule 1 or Rule 2 Order 39 save and except rare orders passed under Section 151 of the Code of Civil Procedure. Rule 1 and Rule 2 of Order 39 do not use the words "interim or ad interim". These are the words coined by the lawyers and the courts merely to indicate the stage at which orders are passed. Interim order usually remains in force for whole of the period of the suit unless varied under Rule 4 or set aside in appeal. Ad interim order operates only till the hearing of the application for injunction. Usually, ad interim order is passed ex parte though it can also be passed when otherwise is present. It is possible that in a given case at the time of institution of a suit, the plaintiff does not make an application for an order of interim injunction as he feels no necessity in which case only summons of the suit is issued to the defendant. During the pendency of the suit, a contingency may arise requiring the plaintiff to apply for an injunction. When such an application is made and when the defendant is present and seeks time to file reply, the court may pass ad interim order of injunction pending reply of the defendant. In some cases, even after the reply is filed by the defendants the court may grant ad interim order of injunction if it does not have time to hear the matter and feels that it is necessary to grant injunction pending hearing to protect the plaintiff pending hearing of the application. Thus, ad interim order of injunction may be ex parte or may be passed even in the presence of the defendants. There is no qualitative difference between an interim and ad interim order except about the period for which they operate and the stage at which they are passed. If so the order refusing an ad interim injunction is as much appealable as an order refusing an interim injunction.
8. Rule 3 of Order 39 mandates issuance of a notice by the court to the opposite party before passing of an injunction to prevent injustice that may be caused to the opposite side by gnat of an order of injunction without giving it an opportunity of being heard. However, the refusal to grant an exparte order or postponing of the grant until the notice is served on the opposite side itself can cause an injustice to the plaintiff in some cases. For example where the plaintiff alleges that the defendant is likely to dispossess him on the very day and the Court is prima facie satisfied about the truth of the allegation and about the plaintiff's right to insist upon a notice to be served on the opposite side before grant of any order may defeat, the very purpose of the suit. In order to prevent such a situation, proviso to Rule 3 of Order 39 empowers the court to grant an injunction ex parte injunction before giving a notice to the other side if the court is satisfied that the object of granting of an injunction would be defeated by delay and the court records reasons for such an opinion. A further safeguard is introduced requiring the person claiming ex parte injunction to send to the opposite party by registered post immediately after the order of injunction, a copy of the injunction application together with the affidavit in support of the injunction application, copy of the plaint and copies of documents on which he relies. These are procedural safeguards. Rule 3 only prescribes the procedure for grant of an injunction and is not the repository of the power to grant injunction. Rule 3 would be superfluous and would not exist without Rules 1 and 2 of Order 39. The order, be it of a grant or of postponing the grant untill service of notice is essentially passed in exercise of the powers under Rule 1 or 2 of Order 39.
9. It cannot be doubted that the power to grant injunction under Rules 1 and 2 of Order 39 includes a power not to grant an injunction. Issuance of a notice under Rule 3 of Order 39 amounts to an order not to grant injunction till notice is served on the opposite party. Therefore, when the court passes an order of issuance of a notice, it amounts exercise of discretion by the court not to grant injunction till notice is issued. As the order granting an exparte injunction is appealable, so would be the order of declining to grant ex parte injunction. Relying upon the judgment in Parijatha and Anr. v. Kamalaksha Nayak and Ors. reported IN AND Abdul Shukoor Sahib v. Umachander reported in AIR 1976 MADRAS 350 it was contended that the appeal does not lie even against an ex parte order of injunction and the remedy of the aggrieved defendant lies in making an application under Rule 4 of Order 39 of the Code of Civil Procedure. However, preponderance of judicial view is that an appeal lies against an exparte order granting ad interim injunction. In Zilla Parishad Buduan v. Brahma Rishi Sharma the Full Bench of the Allahabad High Court, in Alstral Traders v. Haji Mohammed Shaban Dar Reported in AIR 1982 JAMMU AND KASHMIR 124 the Full Bench of the Jammu and Kashmir High Court, in Akmal Ali and Ors. v. State of Assam and Ors. reported in AIR 1984 GAUHATI 86 the Full Bench of the Gauhati High Court, in Patel Jasmat Sangaji v. Gujrat Electricity Board and Ors. reported in 1982 (2) Volume XXIII GUJARAT LAW REPORTER 104 the Division Bench of Gujrat High Court, in United Commercial Bank v. Hanuman Synthetics Ltd. the Division Bench of the Calcutta High Court, and in Airport Authority of India v. Paradise Hotel and Restaurant the Single Judge of the Gauhati High Court have all held that an appeal lies against ex parte order of injunction passed under Rule 1 or Rule 2 of Order 39 of the Code of Civil Procedure. So far as this court is concerned, the matter is concluded by the decision of this court in S.K. Jusa v. Ganpat Dagdu Gire wherein a learned Single Judge of this court has held that an appeal lies against an order of court granting ex parte temporary injunction against defendants with a notice to show cause to the defendants. In my opinion, the order granting ex parte ad interim injunction as well as order declining to grant ex parte temporary injunction and issuance of a notice, are both orders passed under Rule 1 or 2 of Order 39 of the Code of Civil Procedure. If the first is appealable, so must be the second.
10. Reference must also be made to the recent decision of the Apex Court in A. Venkatasubiah Naidu v. S. Chellappan . In paragraph 19 of the judgment, the Apex Court observed:
"It cannot be contended that the power to pass interim ex parte orders of injunction does not emanates from the said Rule. In fact, the said rule is the repository of the power to grant temporary injunction with or without notice interim or temporary, or till further orders or till disposal of the suit. Hence, any order passed in exercise of the aforesaid powers under Rule 1 would be appealable as indicated in Order 43 Rule 1 of the Code. The choice is for the party affected by the order either to move the appellate court or the same court which passed the ex parte order for any relief.
(Underlining supplied) These observations show that Rules 1 and 2 and not the Rule 3 of Order 39 are the repository of the power to grant injunction. The words "any order" used by the Apex Court are significant and thus an appeal would lie even against an order refusing to grant ad interim injunction. It is no doubt true that some observations in paragraph No. 19 of the very judgment do suggest that an appeal against an ex parte ad interim order of injunction would be maintainable if the court does not decide the application finally within 30 days and breaches the mandate of Rule 3A of Order 39. However, those observations must be read in the context and in any event do not limit the earlier observations contained in paragraph No. 11 extracted above.
11. It was suggested that if an appeal against an order declining to grant ex parte ad interim injunction directing the issuance of a notice under Rule 3 of Order 39 is held to be appealable, the appellate courts would be flooded with appeals and every plaintiff who is unsuccessful in getting an exparte ad interim injunction would take a second chance by filing an appeal. It is the job and function of the court claim immunity from the said function on the spacious ground that it would be flooded with work. It is one thing to say that an appeal is not maintainable and another thing to say that the appellate court should exercise its discretion with circumspection.
Re Point No. 2:
12. It would be useful to refer to observations made by the Apex court in Shah Babulal Khimji v. Jayaben D. Kani and Anr. . While holding that Letters Patent Appeal against a judgment and order passed under Order 43 Rule 1 of the Code of Civil Procedure by the Single Judge bench of this High Court is maintainable before the Division Bench, the Hon'ble Supreme court laid down the considerations which should prevail with the Division Bench while hearing an appeal. In paragraph 119, the Apex Court observed:
"That the trial Judge being a senior court with vast experience of various branches of law occupying a very high status should be trusted to pass discretionary or interlocutory orders with due regard to the well settled principles of civil justice. Thus, any discretion exercised or routine orders passed by the trial Judge in the course of the suit which may cause some inconvenience or, to some extent, prejudice one party or the other cannot be treated as a judgment otherwise the appellate court (Division Bench) will be flooded with appeals from all kinds of order passed by the trial Judge. The courts must give sufficient allowance to the trial Judge and raise a presumption that any discretionary order which he passes must be presumed to be correct unless it is ex facie legally erroneous or causes grave and substantial injustice."
What is said by the Apex Court in the aforesaid paragraph can generally be applied to an order passed by a Judge of the City Civil Court who is also a Judge with vast experience gained by trying variety of litigations arising in the commercial city of Mubmai and who also belongs to the cadre of the District Judge. he should be trusted to pass a discretionary order granting or refusing to grant ad interim injunction with due regard to the well settled principles of civil justice. Any discretion exercised by him may not be lightly interfered unless it is shown that the exercise of discretion was so very much erroneous that no court would have exercised it in that manner. 13. The matter can be different where an inexperienced Judge or a junior Judge in the moffusil declines to exercise a discretion of granting ex parte ad interim injunction and the appeal is carried to the District Court. There the court may take into consideration, lack of judicial experience of a junior Judge and his desire to follow the mandate of Rule 3 of Order 39 of issuance of notice at the peril of the grave injustice which may be caused to the person by declining the grant ex parte ad interim injunction. Sometimes declining to grant ex parte ad interim injunction may virtually amount to denial of justice and suit being rendered infructuous. In such a case, the appellate court certainly can and should interfere provided of course the Appellate Court is satisfied about the strong prima facie case, balance of convenience and the extreme urgency and the likelihood of the object of injunction being defeated by delay.
14. In this view of the matter, the preliminary objection raised by the respondents is overruled. The appeals are maintainable. List the appeals separately for hearing on admission individually. Ad interim reliefs if any, granted earlier to continue till 28th January, 2003.
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